Judges: Easterbrook
Filed: Jan. 13, 2017
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15---3838 ROBERT H. TILDEN, Petitioner---Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent---Appellee. _ Appeal from the United States Tax Court. No. 11089---15 — Robert N. Armen, Jr., Special Trial Judge. _ ARGUED OCTOBER 6, 2016 — DECIDED JANUARY 13, 2017 _ Before WOOD, Chief Judge, and EASTERBROOK and MANION, Circuit Judges. EASTERBROOK, Circuit Judge. Taxpayers living in the Unit--- ed States have 90 days to fi
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15---3838 ROBERT H. TILDEN, Petitioner---Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent---Appellee. _ Appeal from the United States Tax Court. No. 11089---15 — Robert N. Armen, Jr., Special Trial Judge. _ ARGUED OCTOBER 6, 2016 — DECIDED JANUARY 13, 2017 _ Before WOOD, Chief Judge, and EASTERBROOK and MANION, Circuit Judges. EASTERBROOK, Circuit Judge. Taxpayers living in the Unit--- ed States have 90 days to fil..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-‐‑3838
ROBERT H. TILDEN,
Petitioner-‐‑Appellant,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent-‐‑Appellee.
____________________
Appeal from the United States Tax Court.
No. 11089-‐‑15 — Robert N. Armen, Jr., Special Trial Judge.
____________________
ARGUED OCTOBER 6, 2016 — DECIDED JANUARY 13, 2017
____________________
Before WOOD, Chief Judge, and EASTERBROOK and
MANION, Circuit Judges.
EASTERBROOK, Circuit Judge. Taxpayers living in the Unit-‐‑
ed States have 90 days to file a petition asking the Tax Court
to review a notice of deficiency sent by the Commissioner of
Internal Revenue. 26 U.S.C. §6213(a). Robert Tilden got such
a notice covering his tax years 2005, 2010, 2011, and 2012.
The last day to seek review was April 21, 2015. The Tax
Court received Tilden’s petition on April 29, 2015, and dis-‐‑
2 No. 15-‐‑3838
missed it as untimely. The Commissioner has confessed er-‐‑
ror—properly so, we conclude.
Although §6213(a) requires petitions to be filed within 90
days, another statute treats mailing as filing. 26 U.S.C. §7502.
Section 7502(a) makes the date of the postmark dispositive.
Section 7502(b) adds that the mailing-‐‑as-‐‑filing rule “shall
apply in the case of postmarks not made by the United
States Postal Service only if and to the extent provided by
regulations prescribed by the Secretary.” That matters to
Tilden, because his lawyer’s staff did not put a stamp on the
envelope, and the Postal Service did not apply a postmark.
Instead the staff purchased postage (both first-‐‑class mail and
the supplement for certified delivery) from Stamps.com, a
service that supplies print-‐‑at-‐‑home postage so that everyone
can enjoy the convenience of a traditional postage meter. The
staff printed a label from Stamps.com; it is dated April 21,
2015, and a member of the staff states that she delivered the
envelope to the Postal Service in Salt Lake City, Utah, on that
date. Tilden contends that this makes the filing timely under
26 C.F.R. §301.7502–1(c)(1)(iii)(B)(1), which reads:
If the postmark on the envelope is made other than by the U.S.
Postal Service—
(i) The postmark so made must bear a legible date on or be-‐‑
fore the last date, or the last day of the period, prescribed for
filing the document or making the payment; and
(ii) The document or payment must be received by the agen-‐‑
cy, officer, or office with which it is required to be filed not
later than the time when a document or payment contained
in an envelope that is properly addressed, mailed, and sent
by the same class of mail would ordinarily be received if it
were postmarked at the same point of origin by the U.S.
Postal Service on the last date, or the last day of the period,
prescribed for filing the document or making the payment.
No. 15-‐‑3838 3
In the Tax Court the Commissioner accepted Tilden’s con-‐‑
tention that the envelope had been delivered to the Postal
Service on April 21 but invoked the next principal division,
(B)(2):
If a document or payment described in paragraph (c)(1)(iii)(B)(1)
is received after the time when a document or payment so
mailed and so postmarked by the U.S. Postal Service would or-‐‑
dinarily be received, the document or payment is treated as hav-‐‑
ing been received at the time when a document or payment so
mailed and so postmarked would ordinarily be received if the
person who is required to file the document or make the pay-‐‑
ment establishes—
(i) That it was actually deposited in the U.S. mail before the
last collection of mail from the place of deposit that was
postmarked (except for the metered mail) by the U.S. Postal
Service on or before the last date, or the last day of the peri-‐‑
od, prescribed for filing the document or making the pay-‐‑
ment;
(ii) That the delay in receiving the document or payment
was due to a delay in the transmission of the U.S. mail; and
(iii) The cause of the delay.
By relying on (B)(2) the IRS was supposing that eight days
(April 21 to 29) is more than the Postal Service ordinarily
takes to deliver certified mail from Utah to Washington,
D.C., which would knock out the use of (B)(1) as well. But
the Tax Court concluded that both sides had picked the
wrong part of the regulation. It thought that the right part is
(B)(3), which tells us:
If the envelope has a postmark made by the U.S. Postal Service
in addition to a postmark not so made, the postmark that was
not made by the U.S. Postal Service is disregarded, and whether
the envelope was mailed in accordance with this paragraph
(c)(1)(iii)(B) will be determined solely by applying the rule of
paragraph (c)(1)(iii)(A) of this section.
4 No. 15-‐‑3838
The Tax Court conceded that the Postal Service had not
placed a postmark on the envelope. It also observed (what is
uncontested) that the envelope had been entered into the
Postal Service’s tracking system for certified mail on April
23, and the judge thought this just as good as a postmark,
which meant that April 23 was the date of filing. That was
two days late, so the court dismissed the petition. T.C.
Memo 2015–188 (Sept. 22, 2015).
Seeking reconsideration, Tilden observed that the parties
had not raised the possibility that tracking data must be
treated as a “postmark made by the U.S. Postal Service”. The
IRS joined Tilden in contending that the judge had been mis-‐‑
taken; abandoning its earlier position, the IRS asked the Tax
Court to apply (B)(1) and deem both of its subsections satis-‐‑
fied. But the judge denied the motion, stating that because
the 90-‐‑day limit in §6213(a) is jurisdictional the court is not
obliged to accept the parties’ agreement.
At oral argument in this court the judges and counsel
discussed whether any of §6213, §7502, or §301.7502–1 cre-‐‑
ates a rule that is properly called “jurisdictional” under the
Supreme Court’s current approach to distinguishing truly
jurisdictional limits—which a court must enforce even if not
raised by the parties, whether or not the litigants agree that a
filing is proper—from case-‐‑processing rules, which are sub-‐‑
ject to waiver and forfeiture. Compare United States v. Kwai
Fun Wong, 135 S. Ct. 1625 (2015) (filing deadlines under the
Federal Tort Claims Act are not jurisdictional), and Irwin v.
Department of Veterans Affairs, 498 U.S. 89 (1990) (all filing
deadlines for suits against the United States are presump-‐‑
tively subject to equitable tolling, as truly jurisdictional
deadlines are not), with John R. Sand & Gravel Co. v. United
No. 15-‐‑3838 5
States, 552 U.S. 130 (2008) (deadline for filing suit in the
Court of Federal Claims is jurisdictional), and Bowles v. Rus-‐‑
sell, 551 U.S. 205 (2007) (deadline for filing a notice of appeal
in civil litigation is jurisdictional). The parties’ briefs in this
court cited many appellate decisions calling §6213 jurisdic-‐‑
tional, but those decisions precede the Supreme Court’s re-‐‑
cent cases or fail to analyze their significance. We deferred
consideration of the appeal while the parties filed supple-‐‑
mental memoranda on the issue. We have also considered
the Tax Court’s en banc ruling in Guralnik v. CIR, 146 T.C.
No. 15 (June 2, 2016), which unanimously concludes that fil-‐‑
ing deadlines for petitions seeking its review are jurisdic-‐‑
tional under the Supreme Court’s current approach.
Kwai Fun Wong tells us that (a) filing deadlines are pre-‐‑
sumptively not jurisdictional, but (b) Congress can make
them so, without necessarily using magic words such as “ju-‐‑
risdiction”. 135 S. Ct. at 1632. As it happens, however,
§6213(a) does use the magic word. It provides, among other
things: “The Tax Court shall have no jurisdiction to enjoin
any action or proceeding or order any refund under this
subsection unless a timely petition for a redetermination of
the deficiency has been filed and then only in respect of the
deficiency that is the subject of such petition.” Tilden does
not want either an injunction or a refund; he has yet to pay
the assessed deficiencies. But it would be very hard to read
§6213(a) as a whole to distinguish these remedies from oth-‐‑
ers, such as ordering the Commissioner to redetermine the
deficiency. For many decades the Tax Court and multiple
courts of appeals have deemed §6213(a) as a whole to be a
jurisdictional limit on the Tax Court’s adjudicatory compe-‐‑
tence. See, e.g., Patmon and Young Professional Corp. v. CIR, 55
F.3d 216, 217 (6th Cir. 1995); Keado v. United States, 853 F.2d
6 No. 15-‐‑3838
1209, 1212, 1218–19 (5th Cir. 1988); Pugsley v. CIR, 749 F.2d
691, 692 (11th Cir. 1985); Andrews v. CIR, 563 F.2d 365, 366
(8th Cir. 1977); Foster v. CIR, 445 F.2d 799, 800 (10th Cir.
1971). We think that it would be imprudent to reject that
body of precedent, which (given John R. Sand & Gravel) plac-‐‑
es the Tax Court and the Court of Federal Claims, two Arti-‐‑
cle I tribunals, on an equal footing. So we accept Guralnik’s
conclusion and treat the statutory filing deadline as a juris-‐‑
dictional one.
But it does not follow that the Tax Court may disregard
the parties’ agreement that a particular petition has been
timely filed. True, litigants cannot stipulate to jurisdiction.
But they may agree on the facts that determine jurisdiction.
See, e.g., Kenosha v. Bruno, 412 U.S. 507 (1973); Railway Co. v.
Ramsey, 89 U.S. (22 Wall.) 322, 323 (1875). For example, if in a
suit under the diversity jurisdiction, 28 U.S.C. §1332, the par-‐‑
ties agree that the plaintiff is domiciled in Illinois and that
the defendant is incorporated in Delaware and has its prin-‐‑
cipal place of business in Texas, a district court need not, in-‐‑
deed must not, look behind that agreement unless the judge
suspects that the allegations are collusive. See 28 U.S.C.
§1359. The Tax Court did not suspect that Tilden and the
Commissioner are colluding to expand its jurisdiction; to the
contrary, the Commissioner initially denied that Tilden’s pe-‐‑
tition was timely. So the judge did not have a sound reason
to doubt that the envelope was indeed handed to the Postal
Service on April 21, 2015, as the Commissioner has conceded
throughout. And now that the Commissioner has acknowl-‐‑
edged that all requirements of (B)(1) have been met—not on-‐‑
ly deposit on April 21 but also that certified mail often takes
eight days to reach the Tax Court from Utah—the only basis
No. 15-‐‑3838 7
for dismissing Tilden’s petition would be a legal conclusion
that (B)(3) is the sole subsection entitled to a controlling role.
On that subject we agree with the parties that the Tax
Court was mistaken. Part (B)(3) of the regulation specifies
what happens if an envelope has both a private postmark
and a postmark from the U.S. Postal Service. Tilden’s enve-‐‑
lope had only one postmark. The regulation does not ask
whether a date that is not a “postmark” is as good as a
postmark. It asks whether there are competing postmarks.
To say “A is as good as B” is not remotely to show that A
is B. “Vanilla ice cream is as good as chocolate” does not
mean that a customer who orders chocolate must accept va-‐‑
nilla, just because the customer likes both. They are still dif-‐‑
ferent. Subsection (B)(3) does not make anything turn on a
date as reliable as an official postmark. It makes the outcome
turn on the date of an official postmark. If the Postal Service
were to treat tracking data as a form of postmark, that might
inform our reading of the regulation, but we could not find
any evidence that the Postal Service equates the two.
For what it may be worth, we also doubt the Tax Court’s
belief that the date an envelope enters the Postal Service’s
tracking system is a sure indicator of the date the envelope
was placed in the mail. The Postal Service does not say that
it enters an item into its tracking system as soon as that item
is received—and the IRS concedes in this litigation that the
Postal Service did not do so for Tilden’s petition, in particu-‐‑
lar. Recall that the Commissioner has acknowledged that the
envelope was received by the Postal Service on April 21. It
took two days for the Postal Service to enter the 20-‐‑digit
tracking number into its system, a step taken at a facility in
zip code 84199, approximately ten miles away from the Ar-‐‑
8 No. 15-‐‑3838
bor Lane post office (zip 84117) where the envelope was
handed in.
Although the taxpayer thus prevails on this appeal, we
have to express astonishment that a law firm (Stoel Rives,
LLP, of Salt Lake City) would wait until the last possible day
and then mail an envelope without an official postmark. A
petition for review is not a complicated document; it could
have been mailed with time to spare. And if the last day
turned out to be the only possible day (perhaps the firm was
not engaged by the client until the time had almost run),
why use a private postmark when an official one would
have prevented any controversy? A member of the firm’s
staff could have walked the envelope to a post office and
asked for hand cancellation. The regulation gives taxpayers
another foolproof option by providing that the time stamp of
a private delivery service, such as FedEx or UPS, is conclu-‐‑
sive. 26 C.F.R. §301.7502–1(c)(3). Stoel Rives was taking an
unnecessary risk with Tilden’s money (and its own, in the
malpractice claim sure to follow if we had agreed with the
Tax Court) by waiting until the last day and then not getting
an official postmark or using a delivery service.
The judgment of the Tax Court is reversed, and the case
is remanded for a decision on the merits.
